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Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Butcher with the Respondent from 10th July 2011. His employment was terminated on 1st May 2017.

Summary of Complainant’s Case:

The Complainant did not receive the National Minimum rate of pay. The Complainant requested his statement of average hourly rate of pay for his reference period on 5th September 2017 for the month of April 2017. He did not receive a response from the Respondent.

The Complainant states that he worked 57.5 hours per week over 5 days. The Complainant refers to S15 of the Organisation of Working Time Act 1997 which provides for a maximum weekly hourly working week of 48 hours over 7 days. He relies on Carpendale v Nino Dela Penq DWT0526 where the Labour Court were unable to reconcile the conflict of evidence on the hours and held:

“The Court has not been able to reconcile the conflict of evidence on the number of hours worked by the Claimant. On the basis that the onus is on the employer to keep records of hours of work in order to ensure compliance with the Act which the Respondent failed to do, the Court has no alternative but to accept the Claimants contention that he worked in excess of 48 hours on a weekly basis therefor the Court finds the employer was in breach of S15”.

The Complainant claims that his loss at 57.5 hours per week at 9.15 per hour less payslips paid, that his net loss is 286.15 per week.

Summary of Respondent’s Case:

The Respondent did not attend the hearing and was notified of the hearing date. The Respondent is no longer trading.

Findings and Conclusions:

The Respondent has failed to attend the hearing and consequently there are no records of the Complainant’s hours available in relation to the complaint.

The Complainant complains that he constantly worked 57.5 hours per week which I accept. This was a regular schedule and did not include overtime. He was paid 240 euro cash which was recorded in payslips. The payment of 240 a week is remuneration. In addition, he received an additional untaxed payment of cash of 360 euro weekly, which I cannot take into account as remuneration.

S40 (1) of the National Minimum Wage Act 2000 provides that where a term or condition of the contract of employment contravenes the Taxes Consolidation Act 1997 as amended or the Social Welfare Acts, notwithstanding the contravention, the employee shall be entitled to redress for any underpayment of pay which he would otherwise be entitled under the Act.

S15 of the Organisation of Working Time Act 1997 provides that an employer must not permit an employee to work in excess of an average of 48 hours in each period of 7 days, which may be averaged over a period of 4 or 6 months.

The compensation of the Complainant is limited to the maximum hourly weekly working week of 48 hours.

48 hours x 9.15 per hour is 439.20 per week wages which the Complainant should have been paid during the relevant period less 240 euro income leaves a net loss of 199.20 per week.

The relevant period is 13 April to 1 May 2017, I find the complaint is well founded and direct payment by the Respondent of the underpayment of 2 weeks minimum wages total 398.40 euro.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the complaint is well founded and direct payment of 2 weeks minimum wages total 398.40 euro by the Respondent.